New rule would give co-defendants the same judge

Park Jefferson arson case behind renewed efforts

Park Jefferson arson case behind renewed efforts

September 02, 2008|By PABLO ROS Tribune Staff Writer

SOUTH BEND -- On July 21, a few days after he charged four men with carrying out a murder, Chief Deputy Prosecutor Ken Cotter filed a motion in St. Joseph Superior Court for a change of judge. He wanted the same judge to preside over the cases of all co-defendants. It was a request he had made before, but occasionally and informally -- orally, not in writing. Over the past few months, however, the prosecutor's office had made it a habit of filing such motions, seeking justice within the walls of the same courtroom for defendants who had allegedly acted together to commit a crime. This new approach was symptomatic of a more permanent change on the horizon that was engineered behind the scenes of the courthouse. Chief Judge John Marnocha said he has submitted for approval by the Indiana Supreme Court a new rule that would provide for the assignment of felony cases in which co-defendants have been charged to the same judge or magistrate. If approved, the new rule, which would apply to all felonies except murder, would take effect Jan. 1. The new rule is significant because it would make court rulings more consistent and the court system as a whole more efficient and fair, those interviewed for this story said. By tinkering with the current status quo -- in which felony cases are randomly assigned to each of four judges through a computerized system -- it would help avoid the arguably unfair outcome of a recent criminal case that added fuel to the engine of change. Those interviewed for this story referred to it as the Park Jefferson case. The Park Jefferson case Following three incidents of arson at Park Jefferson Apartments in South Bend in 2007, police arrested three suspects whose cases were later randomly assigned to two judges. Each one of the defendants ultimately pleaded guilty to one count of arson and admitted to setting a small fire in an apartment complex, causing minimal damage and no injuries but possibly endangering residents' lives. At a sentencing hearing May 14, Judge Jerome Frese placed one of the co-defendants, David Opfer, in a community corrections program through which he could work and live in the community while being monitored. By doing so, Frese kept Opfer out of prison. But what Frese didn't know at the time was that in a nearby courtroom, Marnocha had taken a starkly different approach to the case. Dismissing the teen's claim he and the other two 19-year-olds had been playing a prank, Marnocha sentenced Justin Brooks to eight years in prison. It's unknown if the judges would have proceeded any differently had they been aware of their contrasting approaches to the case. But they both acted within the broad sentencing guidelines agreed upon by the defendants when they pleaded guilty. Yet the outcome generated some negative public opinion by the time Marnocha sentenced the third co-defendant a week later. At a sentencing hearing May 21, Marnocha reaffirmed his view that the defendants' actions could not be called a prank, and he ordered William Glover to serve eight years in prison. Marnocha told The Tribune that while the judges had for years debated how to approach a new system of reassigning co-defendants, the Park Jefferson case instilled in the court a new resolve. "It was the straw that broke the camel's back," he said. Marnocha also said though the outcome of the Park Jefferson case had not been unfair -- both judges acted within the law -- it had created the appearance of unfairness. It's important not just that the system be fair, he said, but that it be perceived that way. "People have more confidence in a system that appears to be fair," Marnocha said. (On July 18, the Indiana Court of Appeals ordered Marnocha to modify Brooks' prison sentence to four years. Glover did not appeal his.) One rule among others With few exceptions, it is mandatory in Indiana that felony cases be randomly assigned to judges. The random assignment practice dates back to the rape trial of professional boxer Mike Tyson, in which a prosecutor was accused of forum shopping the case, that is, of searching for the right judge. Since then, Indiana courts must randomly assign felony cases by computer. But the Indiana Rules of Court also give the chief judge the authority to reassign felony cases under certain circumstances. For example, if a defendant has more than one felony case pending against him and if his caseload has been randomly assigned to more than one judge, then the chief judge may give a single judge oversight of the cases. Approval of the new rules by the Indiana Supreme Court would make similarly reassigning co-defendants to a single judge systematic. The new rules submitted for approval to the Indiana Supreme Court are part of the St. Joseph Superior Court caseload allocation plan, which can be found under "proposed rules" on this page of the Indiana Courts Web site: www.in.gov/judiciary/stjoseph/. St. Joseph Superior Court judges interviewed for this story said they are glad of the changes ahead. "It's long overdue," said Judge Jerome Frese. The solution is now within reach of court-appointed lawyers, said the county's chief public defender, Jim Korpal. Korpal, who is in charge of assigning felony cases to his deputies, explained how impractical the current system can be. He said a public defender representing a defendant with multiple felony cases may be forced to appear in front of three different judges. St. Joseph County Prosecutor Michael Dvorak said his office had been in conversations with the St. Joseph Superior Court judges to bring about change to the current system. He said he had been concerned with questions of efficiency and fairness. Cotter, too, said he had been concerned with such questions, especially in the wake of the Park Jefferson case. He said he approached Marnocha before he started filing motions like the one in the murder case dated July 21. And although Judge Jane Woodward Miller denied that motion because murder cases will be the exception to the new rule, Cotter and Dvorak are looking forward to what's ahead. Said Dvorak: "It'll be more fair all the way around." Staff writer Pablo Ros: pros@sbtinfo.com (574) 235-6357